Dumas Bros. Mfg. Co., Inc. v. Southern Guar. Ins. Co.

• Decision Date: 22 April 1983
• Citation: 431 So.2d 534
• Parties: DUMAS BROTHERS MANUFACTURING COMPANY, INC., and Central Bank of Mobile v. SOUTHERN GUARANTY INSURANCE COMPANY, a corporation. 81-1075.
• Court: Alabama Supreme Court

Page 534

431 So.2d 534

DUMAS BROTHERS MANUFACTURING COMPANY, INC., and Central Bank of Mobile v. SOUTHERN GUARANTY INSURANCE COMPANY, a corporation.

81-1075.

Supreme Court of Alabama.

April 22, 1983.

Alton R. Brown, Jr. of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellants.

Bert S. Nettles and Kenneth O. Simon of Nettles, Barker & Janecky, Mobile, for appellee.

JONES, Justice.

On February 26, 1975, Dumas Brothers Manufacturing Company, Inc., obtained a judgment against Samuel T. Dumas, Jr., d/b/a Samuel T. Dumas Construction Company, for $234,000 plus costs. That judgment was affirmed by this Court on April 2, 1976. Dumas v. Dumas Brothers Manufacturing Co., Inc., 295 Ala. 370, 330 So.2d 426 (1976).

On February 15, 1977, Dumas Brothers Manufacturing Co., Inc., filed a complaint against Southern Guaranty Insurance Company and Samuel T. Dumas, Jr., alleging that Samuel T. Dumas, Jr., was the owner of a liability insurance policy issued by Southern Guaranty with coverage in the amount of $50,000, but that Southern Guaranty negligently or through bad faith failed to settle the initial suit by Dumas Brothers Manufacturing Company, Inc., against Samuel T. Dumas, Jr., d/b/a Samuel T. Dumas Construction Company. Additionally, Dumas Brothers Manufacturing Company, Inc., alleged that Southern Guaranty failed and refused to pay that portion of the original judgment ($234,000) exceeding $50,000 (i.e., $184,000). The ad damnum claimed total damages in the sum of $200,000.

Prior to the suit by Dumas Brothers Manufacturing Co., Inc., against Southern Guaranty, Southern Guaranty paid into the United States Federal District Court for the Southern District of Alabama $89,324.82 in a garnishment action, which sum represented the $50,000 policy limits on Southern Guaranty's liability insurance with Samuel T. Dumas, Jr., plus penalty and interest.

On April 21, 1977, Samuel T. Dumas, Jr., moved to dismiss the complaint against him. This motion was granted on June 28, 1977. On May 17, 1977, Southern Guaranty filed a motion to dismiss the complaint against it, or, in the alternative, for summary judgment. The motion averred that Dumas Brothers Manufacturing Company, Inc., had no standing to bring an action against Southern Guaranty seeking to recover that portion of the original judgment exceeding the $50,000 policy limits. This motion was granted on June 28, 1977.

Dumas Brothers Manufacturing Company, Inc., filed an amended complaint on August 3, 1977, including as a party plaintiff Central Bank of Mobile (an assignee of its claim against Southern Guaranty). Southern Guaranty, on August 22, 1977, filed a motion to strike the amended complaint, alleging, inter alia, that Dumas Brothers Manufacturing Company, Inc., lacked standing to bring the action.

On January 18, 1979, Samuel T. Dumas, Jr., filed a cross-claim against Southern Guaranty, alleging that it negligently or in bad faith failed to settle the plaintiff's claim against him. Southern Guaranty filed a motion for summary judgment as to this cross-claim on August 23, 1979, which was granted on March 31, 1981. This Court affirmed the trial court's ruling on December 18, 1981. Dumas v. Southern Guaranty Insurance Company, 408 So.2d 86 (Ala.1981).

On August 16, 1982, the trial court granted Southern Guaranty's motion to strike the amended complaint of Dumas Brothers Manufacturing Company, Inc. This appeal followed. We affirm.

DECISION

Code 1975, § 27-23-2, reads as follows:

"Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury, or death or for loss or damage to property, if the defendant in such action was insured against the loss or damage at the time when the right of action arose, the judgment creditor shall be entitled to have the insurance money provided for in the contract of insurance between the insurer and the...